Eber Salgado-Gutierrez v. Loretta Lynch
834 F.3d 800
7th Cir.2016Background
- Salgado, a Mexican national who lived in the U.S. unlawfully from 1996–2016 and has U.S.-citizen children, was convicted in 2005 of cocaine possession and later placed in removal proceedings.
- After being initially ordered removed, his case was remanded for ineffective assistance of counsel; on remand he applied for withholding of removal and CAT relief.
- He asserted membership in two proposed social groups: (1) Mexican nationals long resident in the U.S. perceived as wealthy on return, and (2) Mexican nationals whose family members suffered persecution by the Zetas in Veracruz (the latter abandoned on appeal).
- He and family members testified about extortion, a cousin’s killing (1995), a half-brother’s beating (2005), and a nephew’s 2014 kidnapping; he fears kidnapping/torture by the Zetas and says Mexican authorities cannot protect him.
- The IJ denied withholding and CAT relief, finding no past persecution, that the proposed wealth-based group was not cognizable under agency precedent, that relocation within Mexico was reasonable, and that CAT risk was speculative. The BIA affirmed.
- The Seventh Circuit had jurisdiction only over Salgado’s legal challenges to the BIA’s social-group analysis and the CAT legal standard; the court dismissed or declined to review other factual findings because 8 U.S.C. § 1252(a)(2)(C) bars review for aliens removable based on certain criminal convictions.
Issues
| Issue | Salgado's Argument | Government's Argument | Held |
|---|---|---|---|
| Cognizability of proposed social group (long-term U.S. residents perceived as wealthy) | Group is defined by both U.S. residence and perceived wealth; broadness is not a per se bar and group should be cognizable | Board relied on agency precedent that deportees/perceived-wealth groups are not cognizable; alternatively, even if cognizable, relocation defeats relief | Court: Board erred to reject group solely as "too broad," but Dominguez-Pulido supports treating perceived-wealth groups as noncognizable; in any event §1252 bars review of factual relocation finding, so no relief granted |
| Whether Dominguez-Pulido could be applied by government though not cited by BIA (Chenery issue) | Government may not invoke a case not relied on by the agency (Chenery) | Cites Dominguez-Pulido as legal authority supporting BIA conclusion; no new ground is being asserted | Court: No Chenery violation — government may cite controlling circuit precedent in support; Dominguez-Pulido is appropriately relied upon |
| CAT legal standard application (substantial risk and government acquiescence) | BIA misapplied Rodriguez-Molinero; circuit comments about Mexico’s inability to control Zetas bind outcome and support CAT relief | BIA applied correct standard, distinguished prior cases because Salgado lacked targeted threats, torture, or inquiries by gang members | Court: BIA used correct legal standard and distinguished Rodriguez-Molinero/Mendoza-Sanchez; evidence here too speculative to show substantial risk or acquiescence |
| Jurisdiction to review factual findings (relocation, credibility, risk) | Characterizes agency factual determinations as legal errors or as ignored evidence to preserve review | Majority: §1252(a)(2)(C) precludes review of discretionary factual findings for aliens removable under controlled-substance conviction; agency considered the evidence | Court: Many of Salgado’s challenges are barred as factual disputes; his attempt to recast them as legal fails because the record shows the agency considered the evidence |
Key Cases Cited
- Dominguez-Pulido v. Lynch, 821 F.3d 837 (7th Cir.) (perceived-wealth deportee group held noncognizable)
- Rodriguez-Molinero v. Lynch, 808 F.3d 1134 (7th Cir.) (CAT substantial-risk inquiry clarified; government acquiescence standards)
- Mendoza-Sanchez v. Lynch, 808 F.3d 1182 (7th Cir.) (CAT relief where petitioner faced targeted threat and government acquiescence)
- N.L.A. v. Holder, 744 F.3d 425 (7th Cir.) (rejects broadness as per se bar to social-group cognizability)
- Cece v. Holder, 733 F.3d 662 (7th Cir. en banc) (standards for particular social group analysis)